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RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 28
The Committee has been requested by the President of the Association for a report on its opinion as to the ethical obligations of an attorney who retires from the practice of law. Apparently, the Bar Association has been contacted by numerous clients of Staten Island lawyers who have retired without making appropriate arrangements with regard to their files.
Firstly, the Committee assumes that we are dealing with retiring attorneys who have not sold their law practices, which is now permitted by Disciplinary Rule 2-111. In such cases, the interests of the client are protected because both buyer and seller must provide a written notice to the client of the sale, together with other information not pertinent here. Assuming the client has received such notice, he or she has a right to look to the purchasing attorney for information, documents, etc.
The general principles governing the obligation of the lawyer or his or her retirement are set forth in Ethical Consideration 4-6 (NYSBA Ethics Op. #341):
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“The obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment. A lawyer should provide for the protection of The confidences and secrets of his client following the termination of the practice of the lawyer, whether termination is due to death, disability, or retirement. For example, a lawyer might provide for the personal papers of the client to be returned to him and for the papers of the lawyer to be delivered to another lawyer or to be destroyed. In determining the method of disposition, the instructions and wishes of the client should be a dominant consideration.”
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Similar principles are set forth in Ethical Consideration 2-32, on the topic of withdrawal from a matter:
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“A decision by a lawyer to withdraw should be made only on the basis of compelling circumstances, and in a matter pending before a tribunal he must comply with the rules of the tribunal regarding withdrawal. A lawyer should not withdraw without considering carefully and endeavoring to minimize the possible adverse effect on the rights of his client and the possibility of prejudice to his client as a result of his withdrawal. Even when withdrawal is justifiable, a lawyer should protect the welfare of the client by giving due notice of his withdrawal, suggesting employment of other counsel, delivering to the client all papers and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise endeavoring to minimize the possibility of
harm. Further, the lawyer should refund to the client any compensation not earned during the employment.”
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The Disciplinary Rules do not address the issue of retirement directly. Rather, one must first look to DR2-l 10(A):
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“(1) If permission for withdrawal from employment is required by the rules of a tribunal, a Ia~yer shall not withdraw from employment in a proceeding before that tribunal without its permission.
(2) Even when withdrawal is otherwise permitted or required under section 1200.l5(a)(1), (b) or (c) of this Part, a lawyer shall not withdraw from employment until the lawyer has taken steps to the extent reasonably practicable to avoid foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled and complying with applicable laws and rules.
(3) A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.”
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If the retiring attorney represents a party in litigation, he or she is not at liberty to simply return the file to the client and advise him or her to engage another attorney. Circumstances set forth in DR2-l10(B) (mandatory withdrawal) or DR-2-110(C) (permissive withdrawal) must exist, but unfortunately, retirement from the practice of law is not listed in either subdivision. (see, NYSBA Ethics Op. #178). In non-litigated matters, the mandates of subdivision (2) above, requiring “reasonable steps” to be taken to avoid undue prejudice to the client, must be followed.
A lawyer who retires or contemplates retirement may transfer documents and files to another attorney, but the receiving attorney holds them only as a custodian (NYSBA Ethics Op.
#341).
As a practical matter it is difficult to enforce these standards and principles of professional responsibility on a retiring attorney. Disciplinary penalties affecting the right to practice law mean little to a lawyer who has already decided to practice law no longer. However, a lawyer who improperly withdraws may lose the right to compensation and exposes himself or herself to liability for damages resulting from the ensuing neglect of the case (Burston v. Pinkis 25 NYS 2d (2)).
As to the role of the Richmond County Bar Association, the only obligation to be involved in the process is moral and practical. The Association was formed, in part, to provide service to its members and to look out for and advance their best interests (fn 1). The Association, of course, should always maintain positive relations with members of the public, who include the clients of our members.
1 I note with curiosity that our By Laws do not contain a statement of purpose. I have not seen our original Constitution and/or Charter.
In light of the foregoing, the committee recommends the following:
1) Send a notification to all members of the RCBA, whether direct mail or by notice in our publication, and addressed specifically to members who are contemplating retirement, without sale of their practice, of their obligations to give notice to their clients, etc., and of the risk of losing fees if they fail to properly withdraw. The notice should ask such retiring members to so notify the RCBA, which should keep a list of such individuals. The list should include any information which would be needed to contact the lawyer e.g. forwarding address, telephone number, name of friends or relatives.
2) Ask for volunteers from the Bar who would be willing to take custody of a retiring attorneys files, send notices to clients as needed, and answer questions by the retired attorneys clients.
3) The notice should also advise those lawyers contemplating retirement that our Professional Ethics Committee will answer any questions they may have relating to their obligations as a retiring lawyer.
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Respectfully submitted,
Wayne M. Ozzi
Chairman, Professional
Ethics Committee |
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